NE

Hon. C. H. Cavness 'Opinion No. V-1443 State Auditor Austin, .Texas Re: Applicability of H.B. 753, Acts 52nd Legislature, 1951, establishing anaccounting system for State prop-, erty, to such property
as TheAlamo, the French Embassy, Battleship TexDear Sir: as, and the like.

Your request for anopinion Is as follows:

"Your Interpretation or answers to the following questions In connection with House Bill 753 of the 52nd Legislature, anAct providing for the responsibility and accounting for State property, are desired not only by this office but also bythe State Comptroller of Public Accounts and the State Board of Control.

"1

. Are the following agencies subject to all the provisions of House Bill No. 7531

A. Texas Hall of State, Dallas, Texas B. SanJacinto Museum,SanJaclnto Monument, Texas C. Battleship Texas, San Jacinto Monument, Texas D. TheFrench Embassy, Austin, Texas E. The Alamo, SanAntonio, Texas F. Museum,In the old LandOffice Building here in the Capitol Grounds, operated bythe Daughters of the Republic and the Daughters of the Confederacy

"2

. In the event any of the above agencies
are fount' to be subject to compliance with H.B.. 1

Hon. C. H. Cavness,

No. 

### '(53,

shall
as referred to the records, reports,, and forms

in Section 2, Sub-section (a) thereof be filed with the Comptroller by the agency in question, ‘or bythe State Board of Control which serves,. In asupervisory capacity?”

page 2 

### (V-1443)

House Bill 

### 753,Acts 52nd Leg., R.S. 1951, ch. 

### 356,p. 602 (Article 

### 6252-G,V.C,.S:), provides:

.

“Section 1. TheLegislature finds that the State has avery substantial investment in real and personal property and that asubstantial portion of the annual income of the

, State is spent to acquire property for State purposes and to maintain State property. The purpose of this Act Is to establish ansystem for the orderly accounting for State property, to establish responsibility for the maintenance and care of State property and to prescribe the method of fixing pecuniary liability for the misuse of State property by officials and employees. The principles embodied in this Act darenowfound in the commonlaw and Statutes of this State; this Act restates those principles and prescribes the imple-,, menting procedures. The State has areal interest in its property and is entitled to having it managed and used in asound and businesslike manner so that .the maximumbenefits maybe obtained from it andthe State’s investment thereinprotected.

“Sec. 

### 2. The provisions of Articles 10, 11, 12, 14, 22, and 23, Revised,Civil Statutes of Texas, 1925, andActs, Fiftieth Legislature, 1947, Chapter 

### 359,,onth.einterpretation of Statutes shall apply specifically to this Act. In addition to these standard definitions, In this Act, unless the context otherwise requires:

“(a) ‘Agency’ shall include any State department, agency, board or other lnstrumentality, whethe,r it is financed in whole
or in part by funds appropriated by the Legislature or not; bu,tshall not include local political subdivisions of the State, such as counties, cities, towns, school districts, flood control districts, irrigations districts, and the like.. .

Hon. C. H. Cavness, page 

### 3 (V-1443)

"(b) 'Agency head' shall meanthe fulltime State elected or appointed official or officials whoadminister the agency or the executive whohas been appointed to administer the agency byapart-time State elected or appointed of,flclal or officials.

"Sec. 

### 3. All real and personal property belonging to the State shall be accounted for by the head of the agency which'has possession of the property.
,, "(a) TheComptroller of Public Accounts I shall administer the property accounting system established bythis Act. The State, Auditor shall administer the property responsibility system established by this Act. TheComptrol- .ler shall issue such rules andregulations andmanual of Instruction andprescribe such records, reports, and forms as he deems necessary to accomplish the objects of this Act subject to the approval of.the State Auditor.

. . ."(b) TheComptroller shall maintain
acomplete andaccurate set of centralized records of State property. However, where the Comptroller finds that anagency has demonstrated its ability and competence to maintain complete andaccurate detailed records of the property it possesses without the detailed supervision bythe Comptroller, the Comptroller maydirect that the detailed records be keptat the principal office of such agency. Where the Comptroller issues I such order, the Comptroller shall keep only summary records of the property of such agency andthe agency shall keep such detailed records as the Comptroller directs and furnish the Comptroller with such reports at such times as the Comptroller directs, "(c) Each agency head shall cause each Item of State property possessed by his agency to be marked so as to identify it. The agency head shall follow the lnstructlons iasued bythe Comptroller in marking State property.Hon. C. H. Cavness, page 4 (V-1443)

“Sec. 

### 4. (a) All State agencies shall comply with the provisions oftthis Act and shall keep the property~records required by this Act. .'
"(b) All realnroperty owned by the State shall be accounted for bythe agency which possesses the property. ,:Y;,Y. "(c) All personal property-owned by the State shall be accounted for by the agency which possesses the property. The Comptroller shall byregulation define what is meant by personal property for the purposes of this Act.

. . ,
“Sec. 

### 5. Each agency head is responsible for the proper custody, care, malntenance, andsafekeeping of the State property possessed byhis agency.

. . . "(e) Each agency shall makeacomplete physical inventory of all property in its possession once ayear. The inventory shall be taken on the date prescribed for the agency by the Comptroller. "(f) Theagency head shall forward a signed statement describing the method by which the .inventory wasverified, along with
acopy of such inventory within forty-five 

### (45)days after the inventory date for the agency. "(g) TheComptroller shall sub&vise the property accounting records of each agency so that the records accurately reflect the property currently possessed by the agenCY. TheComptroller shall prescribe the methods whereby items of property are deleted fr?m the property records of the agency.

. . .It is noted ,fromthe above quoted provisions that House Bill 

### 753is applicable to all property, real and personal, ownedbythe State; and to the "agency" which has possession of such property. "Agency is defined by the act as "any State department, agency, board or other instrumentality whether it is financed. .

Hon. C. H. Cavness, page 

### 5 (V-1443)

in wl~ole or in p:irt by funds appropriated hythe Leglslxture or not” with exceptions not applicable to your request. Therefore, twoquestions must be determined in regard to each property listed in your request. First, is the property owned by the State? Second, if the property is owned by the State, what agency, as defined byH.B. 

### 753,has possession Of the property? Wewill discuss these questions as they regard the individual property under consideration.

1. The AlamoProperty. S.H.B. 1, Acts 29th Leg., R.S. 1905, ch. 7, p. 7, provides In part:

“That the Governor of the State of Texas be and is hereby authorized to purchase at a price not to exceed Sixty-five Thousand Dollars ($65,000), and to procure to be executed to the State of Texas by the owners of the property herelna’fter mentioned agood and sufficient conveyance in fee of all the land in the City of SanAntonio, Texas, knownas the Hugo&Smeltzer Companyproperty, formerly apart of the old AlamoMission and adjolnlng the PlamoChurch property nowowned by the State:

. . .

“Sec. 

### 3. Uponthe receipt of the title to said land, the Governor shall deliver the property thus acquired, together with the AlamoChurch property already owned by the “Sec. 

### 3. Uponthe receipt of the title to said land, the Governor shall deliver the property thus acquired, together with the AlamoChurch property already owned by the State, to the custody and care of the Daughters of the Republic of Texas, to be malntalned bythemin good without order andrepair,

charge to the State, as asacred memorial to the heroes whoimmolated themselves upon that hallowed ground; and& the Daughters of the Republic of Texas to be maintained or remodeled upon plans adopted by the Daughters of the Republic of Texas, andapproved bythe Governor of Texas; provided that nochanges or alterations shall be madein the AlamoChurch proper, as It nowstands, except such as are absolutely necessary for its preservatipn. All of said property being subject to future legislation bythe Legislature of the State of Texas. ” leglslation’by ihe Leglslacure of the State of Texas. ”.

Hon. C. H. Cavness, page 6 (V-1443)

Pursuant to the above quoted provisions the Alamo property as it nowexists was acquired by the State and custody of the property placed in the Daughters of the Republic. In construing its provisions it was held in Conley v. Daughters of the Republic, 106Tex. 80, 156S.W. 197.(1913), 

### that "the state, acting by its Legislature, had the authority to acquire title to the Alamo property and to place that property in the custody of the corporation, the Daughters of the Republic." The court also stated:

"Weare of the opinion that bythe acceptance of the terms of the statute the corporation became atrustee for the State." 155S.W. at 200.

Since the Daughters of the Republic is a trustee for the State, it is an "instrumentality" which has possession of state property, and it is our opinion that it constitutes anagency for the State within the meaning of H.B.' 753. Therefore, the Daughters of the Republic, being the agency in possession of the Alamo property, should keep the property records required by the act, account for all property ownedby the State In its possession, and file such reports as directed by the Comptrolle:.-. Letter Opinion to Honorable Hall H. Logan, Chairman of State Board of Control, dated December 13, 1949.

2. TheFrench Embassy Property. H.B. 728, Acts 49th Leg., R.S. 1945, ch. 286, p. 455 (Art. 687b, V.C.S.) provides:

"Section 1. There is hereby appropriated all moneys nowin the Texas Centennial Commission funds If andwhenavailable to apply
on the purchase of the French Embassy building and all properties therein.

"Sec. 2. Said property to consist of Embassy building and two and one-half (24)
acres out of the Southeast part of Outlot No. 1, in Division B, City of Austin, Texas, facing easterly on SanMarcos Street, with line commencing at the intersection of San Marcos andNinth Streets andrunning southerly with the West line of SanMarcos Street to analley between Seventh andNinth Streets.Honk.C. H. Cavness, page 

### 7 (V-1443)

main In custody of the’Bo&d bf Control.”

Pursuant to the foregoing provisions the State Board of.C.ontrol was authorized to purchase the French Embassyproperty for the State. Att’y Oen. Op. V-206 (1947). Assoon as title wasacquired bythe State, custody and possebsion of the French Embassy,property was placed in the Daughters of the Republic in accordance with the provision of H.B. 728of the 49th Legislature. Therefore, our discussion relative to the Alamoproperty is applicable to the French Embassy property.



### 3. Battleship Texas. TheBattleship Texas wa8acquired bythe State bygift from the United States Oovernment.

Article 6145-2, V.C.S., created the Battleship Texak Commission for the purpose of accepting the gift and maintaining the property as apermanent memorial. Section 

### 3provides:

“The duties of the Commission shall be: Toprovide aproper berth for the Battleship

‘Texas,’ to select alocation add¢ to,
or on, the SanJaclnto Battlegrounds for such. b,pptti; ‘to.+eady th&Ges&Xi’fo,r visita-’ tion by,the,publicj to ascertain, and institute aproper charge for admission to said vesselj to maintain and operate said vessel
as apermanent memorial and exhibition, and to allocatq,the moneyherein appropriated
as maybe nkceeeary for’the fulfillment of the dutlee contained herein. Said Commission is further authorized to perfornlall other duties in addltion.,Uo thoae apecifitally namedabove oi-mentioned below which
are necessary to carry out the provisions andpurposes of this Acti The aforesaidHon. C. H. Cavness, page 8 (V-1443)

Commission shall be and hereby is authorized to accept gifts or donations for the purposes of this Act."

In a letter opinion to Mr. Gordon H. Lloyd, Executive Secretary of the Employees Retirement System, dated April 11, 1949, this office held that employees of the Battleship Texas Commission were eligible to become members of the State Employees 'Retirement System since the Commission Is a "Department" of the State Government within the meaning of Article 6228a, V.C.S.

In view of the foregoing, it is our oFin: ion that the Battleship Texas Commission Is an agency" of the State within the meaning of H.B. 753. As it has possession of the Battleship Texas,*it should keep the property records required bythe act.

4. SanJacinto MuseumProperty. "The San Jaclnto State Park', composed of the lands owned and acquired by the State called the SanJaclnto battlefield, was established in 1907 by the Legislature and placed in the custody of the State Superintendent of Public Buildings and Grounds (now State Board of Control) and the SanJaclnto State Park Commissioners. S.B..18, Acts 30th Leg., R.S. 1907, ch. 48, p. 104.

In 1939, the SanJacinto Memorial Tower was constructed and the Legislature then authorized the State Board of Control to contract with the San Jacinto Museumof History Association to the end that the association, should assume the care, custody and control of the Sawn

Jacinto Memorial Tower. S.C..R. 21 of the 46th Leg., R.S. 1939, P. 733.

Attorney General's Opinion O-951 (1939) upheld the validity of a contract placing the care, custody, and control of the SanJacinto Memorial Tower in the San{aclnto Museumof History Association, stating: 1,

. . *The contract does not violate Article 3, Section 51 of our Constitution, nor, so far as wehave observed, any other portion or provision of the Constitution of Texas. The authority of the State of Texas to enterinto contracts of this character was upheld In the case of Conley vs. Daughters of the Republic;156 S.W. 197.

. . .Hon. C. H. Cavness, page 9 

### (v-14431,

,I

. . .BySection 6of the con-~ tract, It Is contemplated that the corporation, as trustee for the State, shall use the moneycollected from operating the elevator to defray the expenses of operating the elevator, paying jahltors andwatchmen, and for maintenance and policing of the building, and for complylng~HSt~h the general terms of the resolution’ bf the ‘Legislature In respect to insurance, with the balance of said moneys, as well as the balance of the net profits remaining after the payment of such expenses, to be used on the grounds of.the SanJaclnto State Park under the direction of the Board of Control.

. . .’

Since the SanJacinto Museumof History Association is trustee for the State, It is our opinion that it constitutes an “agency” of the State within the meaning of H.B. 

### 753. Since it is in possession of the SanJacinto Memorial Tower, the SanJaclnto Museumof History Association should keep the property record% required byH.B. 

### 753,account for all State property In its possession as required bythe act, and file such reports as directed by the Comptroller.

Old LandOffice Building Property. H.B. 831, Acts 24th Leg., R.S. 1915, ch. 208, ‘p. 

### 486,provides in part: :

“That as soon as the building located
near the Capitol and knownas the General $ndT;:;;ce Building, in Austin, Travis counis vacated the sameis hereby set aside for’the uses and purposes of the Daughters of the Republic and the Texas Division of the Daughters of the Confederacy; and the said Daughters of the Republic andthe Texas ,Divlsion of the Daughters of the Confederacy .be and the same.are hereby authorized to take full charge of said b,uildlng and use the sameconjointly as they see proper; provided, however, that the Daughters of the Republic shall occupy the upper floor of said building and the Texas Division of the Daul’hters of the Confederacy shall occupy the lowor floor of said building:

“In order that the said building knownHon. CI H. Cavness, page 10 (V-1443)

as the General Land Office, and nowoccupied
as the General Land Office, In Austin, Travis county, Texas be properly repaired andremodeled, after the samehas been vacated
as the General Land Office, the sumof ten thousand ($lO,OOO.OO) dollars or so much thereof as maybe necessary, is hereby appropriated out of any fund not otherwise appropriated, to be used In repairing and remodeling said building, the sameto be expended under the ;dlrection of the Superintendent of Public’ Buildings and Grounds.”

TheLegislature by the above quoted provlsions placed the custody andcontrol of the “Old Land Office Building” in the Daughters of the Republic and the Daughters of the Confederacy, thereby,making them .
trustees for the State. Conley v. Daughters of the Reublic, supra. -TAiz-T Therefore, our discussion relative

lamo property andthe French Embassy property is applicable to the “Old LandOffice Building.”

6. Texas Hall of State property. S.B. 22, Acts 43rd Leg., 2ndC.S., 1934, ch. 69, p. 164, created the Texas Centennial Commlasion, granting it “plenary power to doanyandall things In Its judgment neceaaary to carry out the purposes of the organization,’ to-wit, the holding of the Texas Centennial Celebration
or Celebrations in 1936. Section 14of the act, however, provided:

“All lands andbulldings purchased by Legislative appropriations andall net profits that maybe acquired bysaid Commission shall be turned over to the State of Texas within twoyears from the close of the Texas Centennial celebration for such disposition
as the Legislature maythen determine after
afinal report to the Legislature bythe Commlssion shall have been filed with the Secretary of State, andthe Commisslon shall then be discharged by legislative action, andthe corporation dissolved.”

Section 11of H.B. 11, Acts 44th Leg., R.S. ,1935, ch. 174, p. 427, pFovidea:

"All permanent buildings to be erected ,ln the City of Dallas for ,the Central. ., I

hereby ite of the Cerlt;etM.al Central kpositlon in the City of Dallas in a&olBdance with plans and speci~t’ictit!ens a~p1~1~oved by’the Texas Centennial Cetitr,:ri Expositibn, and on land the title to wht!:), shall be in the State of Texas. TheTexas CentetYnial Oentral Exposition shall have the right to, possessiop of, and the free use and occupancy of+the said buildings for the duration of ttie Central Exposition; provided, however, that the aforesaid buildings and the land on which they will be situated are hereby leased by the State of Texas to the City of Dallas for a period of twenty (20) years, commencing at the termination of the Central Exposition, at arental of OneHundred Dollars ($100) per year for said’ buildings, payable annually in advance.

, . ,’

OnOctober 

### 15,1935, the City of Dallas iasued awarranty deed onatract of land situated In Dallas to the State of Texas uponwhich the Texas Hall of State was built. Vol. 1920, page 397 of the ~Deed Records of Dallas County, Texas.

OnFebruary 25, 

### 1938,pursuant to the provisions of H.B. 11of the 44th Legislature, the State of Texas acting’through the Board of-Control leased the Texas Hall of State to the City of Dallas for a period of twenty year,?,. This lease contract provided in part:

‘“TheCity of Dallas covenant’s z&dagrees that during the term of this lease, aaid’6Uilkii ing, furnishings, andequipment’ sh~all.be us’ed’ only foe public purposes; inclkding annual State expositions; and that such building shall not, be maintained or operated for 

### purposes of private profit; that there shall be
nocharge imposed upon any exhibitor ifi any of said buildings for exhibit space, and that there shall be noadmission charge for entrance into such building.”
TheCity of Dallas is merely alessee of the State byvirtue of H.B. 11 of the 44th Leglilature andnot anagent or trustee. for the State. Therefore, it Is our opinion that M&State Board of ControlHon. C; H. Cavness, page 12 (V-1443)

is the agent of the State in possession of the Texas Hall of State property and is required to keep the property records, account for all property owned by the State In its possession, and file such reports
as direc’ted by the Comptroller.

SUMMARY

House Bill ch. 

### 356,p. 602 7

### 53,Acts 52nd Leg., R.S. 

### 1951, Article 

### 6252-6,V.C.S.), establishing anaccounting system for state property is applicable to the Texas Hall of State, San Jacinto Memorial Tower, Battleship Texas, French Embassy, Alamo, and the Old LandOf- ’ fice Building, all of which property is owned by the State of Texas. Thegroups or*assoclatlons in possession of these state properties are “agencies” of the State as that term Is defined In H.B. 

### 753,and are, therefore, required to keep the property records, account for all State property in their POSsession, and file such reports as directed by the Comptroller of Public Accounts, as provided in H.B. 

### 753.

Yours very truly,

APPROVED:

J. C. Davis, Jr. County Affairs Division PRICEDANIEL Attorney General

E. Jacobson ’ Reviewing Assistant

Charles D. Mathews First Assistant JohnReeves Assistant

JR:lllh

..